1. Notification of forthcoming MSHA Initiatives How will new initiatives or areas of increased focus be communicated to producers? Is there any more efficient method to communicate changes or areas of increased focus?

11.  How can we best be prepared for MSHA’s upcoming enforcement push relating to 56.5002/ 57.5002?

14. Determining Compliance with 30 CFR 56/57.5002 MSHA Inspector Training

15. Topics Objectives 30 CFR 56/57.5002 Program Policy Letter Procedure Instruction Letter Surveys Frequency of Surveys Evidence of Surveys Scenarios Questions/Discussion

16. Objectives Terminal Learning Objective –Assess and determine operator compliance with the requirements of 30 CFR 56/57.5002 Enabling Learning Objectives –Determine whether or not surveys are being conducted –Determine if surveys are being conducted frequently enough

17. 30 CFR 56/57.5002, Exposure Monitoring “Dust, gas, mist and fume surveys shall be conducted as frequently as necessary to determine the adequacy of control measures”

18. Questions to answer Who conducts surveys? What constitutes a survey? How frequent is frequent enough? How to verify surveys are being conducted?

19. Questions to answer Who conducts surveys? What constitutes a survey? How frequent is frequent enough? How to verify surveys are being conducted?

20. Policy During MSHA inspections, MSHA inspectors will be evaluating operator activities to verify evidence of surveys and whether those surveys are being conducted frequent enough to ensure adequacy of controls. MSHA is providing additional information at the following website: www.msha.gov/S&HINFO/ExposureGuidance/E xposureGuidance.asp www.msha.gov/S&HINFO/ExposureGuidance/E xposureGuidance.asp

21. Procedure Instruction Letter (PIL) Issued 12/16/2010 and available at http://www.msha.gov/regs/complian/PILS/ 2010/PIL10-IV-01.asp http://www.msha.gov/regs/complian/PILS/ 2010/PIL10-IV-01.asp Provides general instructions for assessing compliance with the requirements of 56/57.5002 This training supplements the PIL

22. What constitutes a survey? The term survey denotes any information collection method that –Yields information as to miner exposures –Yields information as to the effectiveness of controls Trained and knowledgeable persons should conduct surveys

23. Surveys Exposure monitoring Workplace inspections Inspection of equipment Injury, illness, incident tracking and/or reports Worker input Occupational health assessments Other methods

24. How frequent is frequent enough? 30 CFR 56/57.5002 does not require specific frequency of surveys Mine operator determines frequency based on several parameters

25. Parameters that impact frequency Sampling results and established TLVs (under 30 CFR 56/57.5001) Changes in the job Changes in the hazard Results of inspections and/or routine/special maintenance Worker identified issues Injury and/or illness reports and/or incidents

26. Evidence of Surveys 30 CFR 56/57.5002 does not specify any record keeping requirements Examples of evidence –Exposure monitoring records –Maintenance records –Interviews –Visual inspection –Other evidence presented by the operator

27. Scenarios

28. Review each scenario Discuss the following –What are the facts? –What questions would you ask the operator? –What other information do you need? –What are the potential issues regarding the scenario? –What is the disposition of the scenario?

29. Scenario 1 An inspector is at a mine where there is no history of overexposures and asks the operator if he/she is doing surveys, and the operator freely admits they’ve never been done. The operator also freely admits they have never even thought about it nor have no idea what the hazards are. Finally the operator does acknowledge that they know there is a standard, and admits they have no excuse for not complying.

30. Scenario 2 The inspector takes a lead sample to determine compliance under 56/57.5001(a) and also asks for evidence of surveys being conducted under 56/57.5002. The operator states that they do not take any lead samples. The inspector does determine that the operator does have personnel take annual physicals where blood lead levels are assessed. The operator also says the dust collection systems are serviced routinely and are all working in accordance with manufacturer specifications. Finally, the operator states that supervisors do conduct daily walk-through inspections to ensure that no unsafe conditions exist. Upon analysis of the MSHA samples, you find that there is no citable over exposure for lead under 56/57.5001(a).

31. Scenario 3 The inspector takes a sample for silica dust and asks for evidence of surveys being conducted. The operator shows the inspector the past 3- years of exposure sampling which includes routine sampling of the several employees in those jobs where silica overexposures are expected. The mine operator has identified those jobs that have high silica exposures and has recorded several exposures over the current TLV. All feasible controls have been implemented. The MSHA sampling results indicate an overexposure to silica and a citation under 56.5001(a) is issued.

32. Scenario 4 Using the previous scenario (scenario 3), the operator states he has taken one or two silica samples but has not taken any in the past 12-18 months. Only those two samples are given as evidence of surveys that have been conducted in the past few years. The MSHA sampling results indicate an overexposure to silica and a citation under 56.5001(a) is issued.

33. Scenario 5 A mine operator has contracted for welding to be conducted on site. The Inspector finds no evidence of surveys being conducted to ensure the welder is not over exposed to welding fumes, such as lead oxide. The inspector takes a lead sample and finds that the exposure exceed the TLV listed in 56/57.5001(a).

36. Safe Access- If a piece of machinery meets ISO 2867 standards, can it still be cited under 56.15005?

41. Advance Notice- How should operators handle the “Advance Notice” initiative? From a practical standpoint, how should a scalehouse operator notify management that MSHA is on site, so that they may participate in the inspection?

42. PENALTIES SEC. 110. (e) Unless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by a fine of not more than $1,000 (see note) or by imprisonment for not more than six months, or both.see note

47. Plant/Company Specific Safety Rules – MSHA inspectors should follow plant/company Safety Rules while on the property. What is MSHA’s policy regarding this? When MSHA inspectors do not follow commonly accepted practices, such as signing in at scale house, etc., it sets a bad tone for miners on the site. What is MSHA’s policy in these situations?

48. M/NM General Inspection Procedures

50. Guarding – There is still a lot of confusion surrounding the guarding standards and there appears to be inconsistency in application and enforcement. At what elevation does a tail-pulley need a bottom guard? There are conflicting numbers in the field.

53. The tail pulley of this belt conveyor is high enough above surrounding surface that miners can get under it, either inadvertently, or for work-related purposes such as when cleaning accumulations of material from below it. Therefore, it must be guarded on the bottom. Tail pulley must be guarded underneath to prevent inadvertent contact.

54. Tail pulleys must be guarded, but it is not always necessary to place a guard below a tail pulley... it depends on the height of the pulley above ground, the angle of the conveyor (if it is inclined), what work is performed in the area and the potential for inadvertent or work-related contact. Although using a skid-steer loader to clean beneath the tail pulley reduces the risk of injury, the guard in this photo needs to be improved by extending the sides and front of the guard closer to the ground. The tips of the self-cleaning tail pulley vanes are just barely covered. Miners could contact these hazardous moving machine parts inadvertently or when performing purposeful work-related duties, such as shoveling beneath the tail pulley if the skid-steer loader is unavailable. Tail pulley guards must extend closer to the ground along sides and in front.

55. This guard is noncompliant. In this case the guard needs to more fully protect the area below the tail pulley. The tail pulley is well above the ground and easy access for inadvertent or work-related purposes is invited by the unprotected open front. The guards on the sides and rear extend downward far enough to be compliant. The tail pulley can be accessed by the unguarded opening.

56. This tail pulley guard is compliant. The wing-shaped metal guard beneath the pulley protect persons from inadvertent and work-related actions. There is no work-related reason why a miner would purposely reach around or through the guard to contact the tail pulley. The pulley is close to a concrete surface and a water hose is used for cleanup. OK

57. In some cases, inspectors are suggesting clear distances from “pinch-points” protected by guarding. Can MSHA provide guidance for what is regarded as adequate distance from pinch points?

58. From the 30 CFR

59. From Program Policy

60. What is the status for citations for mobile equipment work platforms when the operator certifies that the manufacturer meets the ISO/SAE criteria as spelled out in PIB No. P10-04? Are citations being vacated Don

61. Presumed Prior Knowledge- Attendance at a “Spring Thaw” was noted for issues of a 140(d) citation, as the “Rules to Live- by” were discussed at this meeting and the violation was covered in the “Rules”. How has this been addressed?

62. o In some cases, after an equipment violation is found, an S&S has been issued for an inadequate pre-shift inspection. What is the policy regarding this situation?

63. Pre shift

66. Case Law — A sand and gravel operator committed an S&S violation of §56.14100(a) where a loader operator failed to conduct a proper pre-operational inspection of his loader. A post-accident investigation showed that the emergency/parking brake had not been operational for about a month, and the loader operator admitted he had not checked the parking brake's condition before operating the loader. The violation was S&S “based on the accident that actually occurred and the serious injuries suffered by [the] loader operator.” The violation resulted from “high” negligence because the cable to the parking brake had been broken for a month, showing that the operator had failed to perform the required inspections for that period of time. A $3,000 penalty was assessed. Anderson Sand & Gravel, Docket No. CENT 98-128-M, 21 FMSHRC 186 (Feb. 11, 1999), 6 MSHN 104 (Feb. 19, 1999) (ALJ Melick).

67. o It is important to clarify MSHA’s position regarding “Presumed Prior Knowledge”. We believe that training and awareness are integral to a good and safe workplace and environment. We need assurances that we will not be rewarding ignorance by citing those for higher negligence who try to do the right thing.

68. Prior Knowledge Negligence has been defined in 30 CFR 100.3(d) as "... conduct either by commission or omission which falls below a standard of care established under the Mine Act to protect miners against the risk of harm." The level of knowledge that mine operators had or should have had regarding conditions or practices that could affect the safety and health of miners, the greater the degree of neglect exhibited by the operator. The facts as documented must support the degree of negligence checked on the Mine Citation/Order Form. Negligence for unwarrantable failure violations has been defined as aggravated conduct constituting more than ordinary negligence. Further, the MINER Act has defined a flagrant violation as one where there is "... a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."

69. No Negligence The operator exercised diligence and could not have known of the violative condition or practice.

70. Low Negligence The operator could have known of the violative condition or practice but there are considerable mitigating circumstances.

71. Moderate Negligence The operator could have known of the violative condition or practice but there are some mitigating circumstances.

72. High Negligence The operator knew or should have known of the violative condition or practice and there are no mitigating circumstances.

73. Reckless Disregard The operator displayed conduct which exhibits the absence of the slightest degree of care.

74. X. MITIGATING CIRCUMSTANCES Mitigating circumstances may include but are not limited to action(s) taken by the operator to prevent or correct hazardous conditions or practices. Mine operators are required to be on alert for conditions or practices in the mine that affect the safety or health of miners and to take the steps necessary to correct or prevent hazardous conditions or practices. The mine operator or contractor might withdraw equipment, personnel and/or immediately proceed to correct the violation but none of those actions taken after they have been cited alters the negligence evaluation made by the inspector when the violation was cited.

75. Determining "Aggravated Conduct" for Purposes of Determining Unwarrantable Failure Factors inspectors should evaluate when determining "aggravated conduct" include one or more of the following: l. the violative condition or practice was obvious or extensive; 2. the violative condition or practice had existed for a period of time; 3. similar violations have been issued at the mine or to the contractor in the recent past; 4. an agent of the operator or contractor had conducted an examination or had been in the area, or was aware of the existence of the condition;

76. 5. the violative condition or practice had been reported to the operator or contractor who then allowed it to exist, without correcting or adequately addressing the problem, for a period of time; 6. the individual who committed or allowed the condition or practice to exist was a supervisor or an agent of the operator or contractor; 7. reasonable efforts were not made by the mine operator or contractor to correct the violative condition or practice; and 8. other factors, not enumerated above, resulted in a negligence evaluation by the inspector of "high" or "reckless disregard."

77.  Does MSHA have the authority to search personal vehicles parked at the mine site that are not used in the mine?

79. Idled Equipment- Does MSHA have the right to require a company to start idled equipment when the mine has ceased production? In some cases, the MSHA inspector has informed the mine operator that the idled equipment must be disabled (remove batteries, tires, etc.) or it will have to be started and inspected. This introduces other hazards that removing the key and tagging the vehicle do not. What is the policy on this?

80. M. Inspection of Mobile Equipment Parked on Ready Lines Many mines have areas where mobile or similar equipment is parked and ready for immediate use. These areas are commonly referred to as "ready lines." Inspectors must inspect equipment for safety defects which is parked at ready lines or similar areas unless such equipment is tagged or marked out of service. The tag should list the defect(s) and prohibit further use until the defect(s) is corrected. General Inspection Procedures

81. Out of service equipment can also be located in a designated area posted for that purpose. Equipment tagged or marked out of service in these areas should not be inspected. Some mobile equipment can not be moved to a designated area as described above due to defects making it incapable of such a move. Inspectors should not inspect equipment like this if it is tagged or marked out of service and the defect is noted. However, if no tag or marking exists, it should be inspected if it is safe to conduct such inspection.

82. o In some cases, the MSHA inspector has informed the mine operator that the idled equipment must be disabled (remove batteries, tires, etc.) or it will have to be started and inspected. This introduces other hazards that removing the key and tagging the vehicle do not. What is the policy on this?

83. Many mines have areas where mobile or similar equipment is parked and ready for immediate use. These areas are commonly referred to as "ready lines." Inspectors must inspect equipment for safety defects which is parked at ready lines or similar areas unless such equipment is tagged or marked out of service. The tag should list the defect(s) and prohibit further use until the defect(s) is corrected

84. FY 2010 VS. FY 2011 first 6 months of each FY 2010 872 total issuances 349 S & S (40%) 10% High Negligence or Greater FY 2011 807 total issuances 245 S & S (30%) 15% High Negligence or Greater

85. Ranked Standards IN OHIO FY 2010 1. 56.15005 (#12 2011) 2. 56.14107(a) 3. 56.11001 4. 56.14100(b) 5. 56.12028 6. 56.12004 7. 56.14132(a) 8. 56.9300(a) 9. 56.14112(b) 10. 56.14101(a)(2) FY2011 1. 56.14107(a) 2. 56.11012 (#13 2010) 3. 56.14100(b) 4. 56.14112(b) 5. 56.11001 6. 56.14132(a) 7. 56.9300(a) 8. 56.12004 9. 56.12028 10. 56.14101(a)(2)

86. Ranked Standards OHIO VS. Rest of Nation Nationwide Ohio 1. 56.14107(a) (1) 2. 56.14100(b) (3) 3. 56.12004 (8) 4. 56.12032 (33) 5. 56.20003(a) (11) 6. 56.14112(b) (4) 7. 56.11001 (5) 8. 56.12018 (14) 9. 56.17001 XXX 10. 56.14132(a) (6)